Cross-Examination: Drinking While Pregnant – A Woman’s Choice?

Chantelle Murray

On the night of March 17 2015, a 36 week pregnant woman went out to dinner with her husband.[1] When asking for a glass of wine she was refused service and instead offered a complimentary ginger beer. Nichola Hayes said she felt “completely flabbergasted and embarrassed” at this treatment.[2] Her argument was that she was a well-educated woman who had been careful throughout her whole pregnancy.[3] She had only planned to have one glass because it was her and her husband’s anniversary. However, if the waiter or waitress was to act on these claims would that mean that someone who was uneducated would not be given the same treatment?

Firstly, this would go against the fundamental principle of the Rule of Law: that everyone should be equal before the law. Under this, all pregnant women should be treated the same. Secondly, Hayes’ claim that her education makes it appropriate to serve her alcohol but not, impliedly, other pregnant women, is also in breach of the right to be free from discrimination, incorporated into New Zealand Law in the Bill of Rights Act 1990.[4] Freedom from discrimination is further protected in the Human Rights Act 1993 in Part 1A. If Hayes’ line of argument was followed, then the courts would have to discriminate against certain individuals on the basis of their education. This seems prima facie unjust. BORA in general advocates for equality by outlining a set of rights that every single individual, irrespective of their background, are entitled to. Our Court of Appeal and Supreme Court have also both endorsed a “rights-centred approach, emphasising the primacy of the individual rights and freedoms” [5] protected by BORA. From this argument, it would be best to abstain from serving alcohol to all pregnant women to avoid unjust discrimination. S 5 BORA does say that the rights it outlines can be limited if such limitations are justifiable. However, it is difficult to see a justifiable reason as to why one pregnant woman may be served wine while another may not on that basis.

Another factor which needs to be addressed is that it could be said that Mrs Hayes is being discriminated against for being pregnant. It is arguable that she should be treated as any other person and allowed to exercise her individual rights. As briefly discussed above, individual rights are important in our democratic society. It is clear that such rights are treated as highly important by the courts with the emerging concept of the Principle of Legality; which requires, still somewhat controversially, that Parliament must make it clear if it intends to abridge fundamental rights through legislation. If it does not, the courts are likely not to give this particular rights-infringing provision effect. Analogous cases in England and in New Zealand have emerged to this effect, including R v Secretary of State for the Home Department, ex parte Simms, Taylor v New Zealand Poultry Board and R v Poumako, to name a few.[6] In these cases the courts outlined that they will read legislation subject to individual rights, unless there is express wording or necessary implication in the Act, reflecting the development of a rights-based jurisprudence in New Zealand and across the commonwealth. Considering the importance of rights in New Zealand, it can be argued that Mrs Hayes should not be defined by her pregnancy, and instead respected as an autonomous individual entitled not to be discriminated against.

As discussed above, BORA specifically allows for there to be qualifications on fundamental rights for justified reasons.[7] Even though there does not appear to be a justifiable reason to serve one pregnant woman but not another, might it be justifiable for no pregnant women to be served at all? Is it right to limit the mother’s rights to protect the rights of her unborn child?

Harvard Health Publications in 2013 published research that drinking in the first trimester may not be harmful, but that heavy drinking can cause foetal alcohol syndrome (FAS).[8] This causes the baby to be underweight and have physical impairments such as thin lips and small eye openings. Later in life they are slower with language, often have learning difficulties and have impaired coordination. American College of Obstetricians and Gynaecologists and the United Kingdom’s Royal College of Obstetricians and Gynaecologists Women both advise that women should not drink at all while pregnant to avoid any risk of their child developing FAS.[9] Due to the confused state of the evidence on this point, doctors generally advise women to abstain completely during pregnancy to avoid any risk.[10] On an extreme view, drinking while pregnant may be regarded as depriving the unborn child of a right to enjoy a quality of life it would be unable to enjoy if it was to develop FAS. Whilst not strictly analogous, the willingness of the State to curtail female autonomy in order to uphold some rights on the part of unborn children is reflected in the almost complete criminalization of abortion.[11] If this argument was taken, Mrs Hayes and all other pregnant women should not be served alcohol in restaurants or elsewhere for the purpose of protecting their child.

This issue is very contentious. There will be an ongoing debate as to how to balance both the mother’s rights and the baby’s rights. A representation of this uncertainty is the poll on the New Zealand Herald website.[12] Forty-nine per cent of respondents believed that we should protect the rights of Mrs Hayes’ child and forty-six per cent believe that it is her choice. Five per cent said that the question was too tough to answer. Whether or not these results are representative of the entire New Zealand public, it is without doubt that the balancing act between the rights of mother and child is an issue which remains open to discussion.

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